Date: 
Friday 1 September 2017
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Discussions about marriage equality often lead to questions about anti-discrimination law and religious freedom. Here's how the Sex Discrimination Act currently balances religious freedom and protection from discrimination.

It is generally unlawful in Australia to discriminate against a person because of their sex, sexual orientation, gender identity and intersex status, according to the Sex Discrimination Act 1984 (Cth) (SDA).

The SDA also makes it unlawful to discriminate against a person because of their marital or relationship status, family responsibilities, pregnancy or potential pregnancy, and breastfeeding.

The SDA applies to defined areas of public life including employment, education and the provision of goods and services.

The SDA also applies to accommodation, housing or land; licenced clubs; and the administration of Commonwealth laws and programs.

Like other anti-discrimination legislation, the SDA also says that in certain circumstances treating someone differently because of their sex (or any of the other protected attributes) is not against the law. This is known as an exemption.

For example, sections 37 and 38 of the SDA say it is not unlawful for ‘religious bodies’ and ‘educational institutions established for religious purposes’ to discriminate against people in certain circumstances on the basis of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding.

Section 37 creates exemptions for the ordination or appointment of priests, ministers of religion or members of any religious order. Exemptions are also available for the training or education of people seeking ordination or appointment as priests, ministers or of religion, and the training or education of people to participate in religious observance or practice.

Section 37 of the SDA also allows for religious bodies to discriminate against people in relation to acts or practices that conform to the doctrines, tenets or beliefs of that religion or where it is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

The SDA does not define a ‘body established for religious purposes’.

The general exemptions provided by section 37 do not apply to conduct connected with the provision of Commonwealth-funded aged care services.

There are additional exemptions in section 40(2A) of the SDA. This section exempts anything that is done by a person ‘in direct compliance’ with the Marriage Act 1961.

Section 38 of the SDA says it is not unlawful for educational institutions established for religious purposes to discriminate against employees and contract workers because of their sex, sexual orientation, gender identity, marital or relationship status or pregnancy, where:

  • the educational institution is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and
  • the person who discriminates does so in good to faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Section 38 also says it is not unlawful for a person to discriminate against another person because of their sexual orientation, gender identity, marital or relationship status or pregnancy in relation to the provision of education or training if the two conditions noted above are satisfied.

More information is available on the Human Rights Commission website and via the Commission’s Complaint Information Line. Phone 1300 656 419 or TTY 1800 620 241. The National Relay Service 133 677 can assist people who are deaf or have a hearing or speech impairment.

Read the SDA exemptions factsheet (pdf).

Photo: Celebrating the marriage of Curtis Yee and John Berry. Flickr